Orders for Protection
Burnsville, MN Family Law Attorney, Merlyn Meinerts, talks about specific issues regarding orders for protection in a divorce.
Phone: (952) 736-1843
An order for protection exists under Minnesota statute to provide the protected party with relief in the event of domestic abuse, which can be defined briefly as physical harm or an imminent threat of physical harm. Those parties who are a victim in that type of circumstance can appear to the court administrator at the local courthouse, have assistance filling out a petition for an order for protection on what’s called an ex parte basis. That party can appeal to the court for an award of an order for protection without the other party being notified or having any knowledge of that application being made.
If the ex parte order is issued then the responsive party has the right to have a hearing, an evidentiary hearing before a judge to determine whether or not there’s sufficient evidence to support a finding of domestic abuse. And of course, the OFP can oftentimes then be intertwined with a divorce. Sometimes an OFP is a precursor to an upcoming divorce; sometimes during the middle of divorce, an OFP can be undertaken so it is very much related to family law in general.
There are some cases where and order for protection is simply abused to gain advantage in a divorce process ’cause it can do things like kick someone out of a house immediately, it can award custody, it can award child support, it can be a short form way of getting the same type of relief one could have in a divorce process. So it’s important to scrutinize those types of cases to make sure the order for protection is appropriately used.
The important thing about an order for protection is if there is a finding of domestic abuse against a party that then overcomes a lot of presumptions that would otherwise apply. For example, it’s presumed under Minnesota law that everyone has joint, legal custody but it then says unless there’s a finding of domestic abuse.
So an order for protection can override the presumption of joint, legal custody. There’s a presumption under the law that parents are entitled to 25 percent, at least 25 percent of parenting time, again, unless there is domestic abuse, so an order for protection would override that presumption.
And finally, there’s a relatively new statute with respect to moving children out of the state and relocating outside of the state of Minnesota. Generally, the burden there falls on the party seeking to move unless there’s been a finding of domestic abuse and then the burden shifts to the other parent for purposes of preventing the move out of state. So an order for protection can be very significant for those reasons.
The final reason I would throw out there is that it does affect the party’s ability to own and operate firearms. So for hunters and those who engaged in those kinds of recreational activities that can be a very significant development as well.